On The Constitutionality Of General Rules In Chinese Private International Law

China’s private international law system is composed of rules having different status and sources,which functionally divided into general rules and specific applicable rules.In this paper,three general rules,i.e.,‘the priority of the international treaties’,‘the supplemental application of the international practice’ and ‘the reservation of public order’,will be carefully investigated,aiming to reveal their constitutionality with the help of constitutional review theory and China’s constitutional supervision system.Specifically,this paper consists of an introduction,the main part and a conclusion.The introduction mainly summarizes or explains issues such as problem awareness,research significance,research status,research ideas,content framework,and research methods.Chapter One studies the basic issues of the constitutional review of the rules of private international law,which is divided into three sections.The first section defines the connotation of terms such as private international law rules and constitutional review,and emphasizes that it is necessary to obtain useful references from the constitutional review rules of general legal rules and to pay attention to the particularity of the constitutional review of private international law rules.The second section analyses the constitutional review practice of ordinary domestic legal rules in the U.S.and Germany.Many common experience exist in the constitutional review in the U.S.and Germany.However,because of the ‘path dependence’ to their constitutional tradition,differences also lie between the constitutional review of the U.S.and Germany.With regard to the relationship between the Constitution and the rule of private international law,several provisions(mainly about the separation of powers)of the U.S.Constitution indirectly affect the application of conflict rules,whereas in Germany,the Act of conflict rules shall not violate the constitutional basic rights,so as the application of foreign law.The third section analyzes the peculiarities of the foregoing three rules from the perspective of the jurisprudence of private international law.The special nature of the rules of private international law led to the research targets of this paper focusing on whether the content of theses rules are in conflict with the Constitution,whether the legislative form of these rules are in accordance with the Constitution.Chapter Two focuses on the constitutionality of the rule of the priority of international treaties,which is divided into four sections.The first section defines the private international law treaties as a collection of the treaties of the uniform substantive law,the treaties of conflict law and the treaties of international civil procedural law.The second section and the third section respectively examine the legislative provisions and practices of the signature,acceptance and application of treaties in foreign countries and China.The fourth section is a special study on the constitutionality of the rule of the priority of international treaties and the basic conclusion are the following:(1)the rule of the priority of the international treaty providing in domestic laws is in accordance with the Constitution,but constitutionality of the technology of decentralized legislation is questionable;(2)the foregoing rule should be interpreted as the application of the international treaties prior to domestic laws whether they are conflict with domestic laws or not;(3)the effectiveness of the international treaties is under the Constitution,but their effectiveness should not be considered higher than domestic laws automatically,because the priority of the application doesn’t mean the higher effectiveness;(4)the Constitution plays a key role in coordinating the relationship between international treaties and domestic laws.To perfect the rule of the priority of the international treaty,we need provisions of international treaties ’application in the Constitution.Chapter Three focuses on the constitutionality of the rule of the supplemental application of the international practice,which is also divided into four sections.The first section defines the international practice as the international commercial practice,reveals the widespread existence and characteristics of the international practice,and points out different opinions regarding the effectiveness and the application order of the international practice.The second section and the third section respectively examine the legislative provisions and practices of the effectiveness and the application of the international practice in foreign countries and China.The fourth section is a new thinking on the constitutionality of the rule of the supplemental application of the international practice and the basic conclusion are the following:(1)the rule of the supplemental application of the international practice providing in domestic laws is in accordance with the Constitution;constitutionality of the technology of decentralized legislation is questionable;(2)provisions on the reservation of public order in relevant laws have been replaced by article 5 of the Applicable Law of Foreign-related Civil Relationship;(3)the practice of Judicial Interpretation authoring the parities of a contract the right of choosing international practice as applicable law is in accordance with the Constitution and laws;(4)the general effectiveness order of rules in China is‘ the Constitution----international treaties----domestic laws----international practice’,but this effectiveness order may be different in specific situation.Chapter Three focuses on the constitutionality of the rule of the reservation of public order,which is also divided into four sections.The first section defines the connotation of the reservation of public order,points out different opinions regarding the application of the rule of the reservation of public order.The second section and the third section respectively examine the legislative provisions and practices of the rule of the reservation of public order in foreign countries and China.The fourth section is a new thinking on the constitutionality of the rule of the reservation of public order and the basic conclusion are the following:(1)the rule of the reservation of public order is considered as an exception of constitutional review,leading to research topic of this paper focusing on the statement of the provision and the the technology of legislation;(2)the statement of article 5 of the Applicable Law of Foreign-related Civil Relationship has been already mature with several minor defects;(3)the supreme people’s court exerts its judicial initiative to clarify the application of the rule of the reservation of public order through judicial interpretations,which conforms to the original intent of relevant laws and the Constitution.The conclusion first summarizes the full text research,and then points out that the implementation of the Civil Code has had a significant positive impact on the international private legal system,but there are still some problems to be resolved.Finally,from the perspective of sympathizing with history,facing the world,and focusing on reality,the author puts forward the "three-step" concept of promoting the harmonious development of China’s private international legal system under the guiding of the idea of a community of shared future for mankind.